{"id":65040,"date":"2015-10-12T12:00:19","date_gmt":"2015-10-12T11:00:19","guid":{"rendered":"https:\/\/www.transcend.org\/tms\/?p=65040"},"modified":"2015-10-12T11:37:02","modified_gmt":"2015-10-12T10:37:02","slug":"top-european-court-rules-that-nsa-spying-makes-u-s-unsafe-for-data","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2015\/10\/top-european-court-rules-that-nsa-spying-makes-u-s-unsafe-for-data\/","title":{"rendered":"Top European Court Rules That NSA Spying Makes U.S. Unsafe For Data"},"content":{"rendered":"

6 Oct 2015 – <\/em>The European Union no longer considers the United States a \u201csafe harbor\u201d for data because the National Security Agency surveillance exposed by whistleblower Edward Snowden \u201cenables interference, by United States public authorities, with the fundamental rights of persons.\u201d<\/p>\n

\"A<\/a>

A slide describing PRISM and UPSTREAM, NSA surveillance programs vacuuming up telephone and Internet communications from major companies, revealed by Edward Snowden in 2013.<\/p><\/div>\n

The EU\u2019s highest court, the Court of Justice, declared<\/a> on Tuesday that an international commercial data-sharing agreement allowing U.S. companies free-flowing access to large amounts of European citizens\u2019 data was no longer valid.<\/p>\n

As Snowden revealed in 2013, the NSA has been interpreting section 702 of the Foreign Intelligence Surveillance Act as giving it license to intercept Internet and telephone communications in and out of the U.S. on a massive scale. That is known as \u201cUpstream\u201d collection. The NSA is not required to demonstrate probable cause of a crime before a court or judge before examining the data. Another 702 program, called PRISM, explicitly collects communications of \u201ctargeted individuals\u201d from providers such as Facebook, Yahoo and Skype.<\/p>\n

When Max Schrems, an Austrian law student, learned about Snowden\u2019s revelations, he argued that Facebook was ignoring stronger European privacy laws when it sent his data from its European headquarters in Ireland back to the United States, where it was being intercepted by the NSA. Schrems wrote<\/a> that the lawsuit he launched against Facebook was about \u201ctransparency\u201d and \u201cuser control\u201d because he could not determine what was being done with his data\u2014which goes against the European Union Charter of Fundamental Rights.<\/p>\n

On September 23, the Court of Justice\u2019s top legal adviser, Yves Bot, concluded <\/a>that the safe harbor agreement was invalid because of U.S. surveillance. \u201cIt is apparent from the findings of the High Court of Ireland and of the Commission itself that the law and practice of the United States allow the large-scale collection of the personal data of citizens of the EU which is transferred, without those citizens benefiting from effective judicial protection,\u201d Bot wrote. \u201cInterference with fundamental rights is contrary to the principle of proportionality, in particular because the surveillance carried out by the United States intelligence services is mass, indiscriminate surveillance.\u201d<\/p>\n

The United States argued in response that the agreement protects privacy, and is vital to both U.S. and European businesses. A statement<\/a>\u00a0from\u00a0the United States mission to the European Union insited that \u201cThe United States does not and has not engaged in indiscriminate surveillance of anyone, including ordinary European citizens.\u201d<\/p>\n

But it did not provide any indication of how it defines \u201cindiscriminate\u201d \u2013 and the European court didn\u2019t buy it.<\/p>\n

\u201cNational security, public interest and law enforcement requirements of the United States prevail over the safe harbour scheme, so that United States undertakings are bound to disregard, without limitation, the protective rules laid down by that scheme where they conflict with such requirements,\u201d the Court wrote<\/a>.<\/p>\n

Although the safe harbor provision applies to commercial data, the underlying issue is the overbroad access of U.S. intelligence agencies to European citizens data, said Jens-Henrik Jeppesen, director of European Affairs for the Center for Democracy and Technology. \u201cSurveillance is the heart of this matter,\u201d Jeppesen told The Intercept<\/em>. \u201cThe highest court in the European Union is not satisfied with the guarantees such as they are under current U.S. laws.\u201d<\/p>\n

\u201cThe European decision is one of the best ones we\u2019ve seen come out of Snowden revelations,\u201d says Tiffiny Cheng, co-founder of the online advocacy group, Fight for the Future. \u201cIt is an actual conversation on the responsibility of companies and government to protect data they hold.\u201d<\/p>\n

The ruling was seen as posing a major obstacle for U.S.-based technology companies like Facebook, Google and Yahoo, whose business models require moving massive amounts of data back and forth between the U.S. and Europe.<\/p>\n

What\u2019s not yet clear is what they can do about it.<\/p>\n

Sen. Ron Wyden, D-Ore., had a suggestion: reform U.S. surveillance law.<\/p>\n

The decision is disastrous for U.S. companies, Wyden said in a statement. \u201c<\/strong>By striking down the Safe Harbor Agreement, the European Union Court of Justice today called for open season against American businesses,\u201d he said. \u201cYet, U.S. politicians who allowed\u00a0the National Security Agency to secretly enact a digital dragnet of millions of phone and email records\u00a0also bear responsibility. These ineffective mass surveillance programs did\u00a0nothing\u00a0to make our country safer, but they did grave damage to the reputations\u00a0of the American tech sector.\u201d<\/p>\n

Wyden called on Congress to \u201cstart taking the next steps on surveillance reform now,\u00a0and not wait\u00a0for the\u00a0expiration of\u00a0section 702 of the FISA statute in\u00a0December 2017 to get started.\u201d<\/p>\n

Snowden himself celebrated the decision in a stream of live-tweets, writing that \u201cwe are all safer as a result.\u201d<\/p>\n

https:\/\/twitter.com\/Snowden\/status\/651383168650604544\/photo\/1<\/p>\n

https:\/\/twitter.com\/Snowden\/status\/651384292728250368\/photo\/1<\/p>\n

And European privacy activists were optimistic about the fallout. \u201cInvalidating Safe Harbour is a unique opportunity for the EU and the US to develop an accountable mechanism for data transfer that would protect individuals\u2019 rights to privacy and data protection and provide companies with legal certainty at the same time,\u201d wrote Estelle Masse, a policy analyst for Access in Brussels.<\/p>\n

A narrower ruling, wrote F\u00e9lix Tr\u00e9guer, co-founder of the French civil rights group La Quadrature du Net, might have simply resulted in \u201cthe relocation of European\u2019s personal data in Europe where local intelligence agencies would have been able to get their hands more easily on that data.\u201d<\/p>\n

\u201cThankfully, the ruling goes further than that,\u201d he wrote. \u201cIt sets the stage for future cases (for instance those we\u2019ll soon introduce against the French Intelligence Act, or those against the GCHQ that are currently pending before the European Court of Human Rights). It give[s] us room for legal maneuver; legal opportunities that civil rights groups all across Europe (and beyond probably) will be able to use in resisting the dangerous drift toward mass surveillance.\u201d<\/p>\n

_________________________________<\/p>\n

Contact the author: <\/em>Jenna McLaughlin<\/a>\u2709jenna.mclaughlin@\u200btheintercept.com<\/a><\/em><\/p>\n

Go to Original \u2013 theintercept.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

6 Oct 2015 – The European Union no longer considers the United States a \u201csafe harbor\u201d for data because the National Security Agency surveillance exposed by whistleblower Edward Snowden \u201cenables interference, by United States public authorities, with the fundamental rights of persons.\u201d<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[60],"tags":[],"class_list":["post-65040","post","type-post","status-publish","format-standard","hentry","category-whistleblowing-surveillance"],"_links":{"self":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/65040","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/comments?post=65040"}],"version-history":[{"count":0,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/65040\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media?parent=65040"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/categories?post=65040"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/tags?post=65040"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}